David Werdermann is a lawyer and was the first person to notice the criminalisation of search and rescue through the amendment of Section 96 in Germany’s so-called Repatriation Improvement Act (‘Rückführungsverbesserungsgesetz’). In addition to making asylum law considerably harsher, the law also criminalises humanitarian aid at the EU’s external borders, including non-governmental search and rescue. Section 96 of the Residence Act now also criminalises the altruistic “facilitation of unauthorised entry” into the Schengen area, which includes the work of non-governmental search and rescue organisations and many other humanitarian aid organisations.

After David Werdermann published a legal opinion which was followed by massive protests from civil society, the government parties said that search and rescue would be excluded from the amendment to the law.

However, the final draft of the law, which has been passed by the German Parliament (Bundestag and Bundesrat), now reveals that the rescue of unaccompanied minors, of all things, could be a punishable offence. David Werdermann explains in an interview how this came about and what legal consequences our crew on board or our team on land can expect.

You were the first person to notice the criminalisation of search and rescue through an amendment to the Residence Act in the German Ministry of the Interior’s proposal for the ‘Repatriation Improvement Act’. How did you become aware of this?

I work at the Gesellschaft für Freiheitsrechte (‘Society for Civil Rights’). We deal with practices or laws that violate fundamental and human rights and try to take action against them with strategic litigation. Because I have been dealing with the legislation around smuggling [note: section 96] for some time, I took a closer look at the Repatriation Improvement Act and came across this change.

This is because the offence of “people smuggling” is not linked to exposing people to danger or even human trafficking. It is sufficient for criminal liability that you help people to enter the country “without authorisation”. And in many cases, it is refugees themselves who steer a boat or drive a car across the border to save themselves and others.

Paragraph 96 is not new. What is the problem with the new change in the law?

The change in the law has massively expanded the offence of “people smuggling into the EU”. Whereas previously only those who benefited financially were liable to prosecution, all humanitarian aid workers who act “repeatedly or in favour of several foreigners” are now liable to prosecution. And this actually applies to every search and rescue operation.

Although search and rescue was exempted following an outcry from civil society, the final text of the law still applies to the rescue of unaccompanied minors. Humanitarian aid for people fleeing by land is also threatened with criminalisation.

There are normally several unaccompanied minors on board each of our rescues. What does this mean in concrete terms for our organisation and the crew members on board?

The change leads to uncertainty. However, this does not mean that the rescue of unaccompanied minors will automatically lead to a conviction and crew members ending up in prison. There are good reasons for refugee helpers and maritime rescuers to be able to invoke the justifiable state of emergency under Section 34 of the German Criminal Code. But this comes with a number of uncertainties. And if the political shift to the right continues, and the AfD (far right-wing party in Germany) may soon run the Ministry of Justice in Thuringia or Saxony, this party could instruct the local public prosecutor’s office to open an investigation. Even if there is no conviction in the end, criminal proceedings are psychologically stressful and expensive. It is therefore urgently necessary for the legislative to clarify how the law is to be understood.

Despite these ambiguities and protests from civil society, the bill was ultimately passed. What does this step mean for you?

I see the criminalisation of helping refugees as an expression of the political swing to the right across Europe. We see that the rights of refugees are being massively curtailed. Asylum procedures and border protection are to be outsourced to so-called “safe third countries”. However, the rule of law does not apply there.

What is actually needed are safe, legal refugee routes. This would put an end to the business of people smuggling and trafficking. Refugees could reach Europe safely and apply for asylum here, as they are entitled to do as part of their civil and human rights.